Karnataka High Court
Mr Nagesh Devadiga @ Nagesh vs The State on 4 June, 2012
Equivalent citations: 2012 (4) AIR KAR R 124, (2013) 1 CRIMES 39, (2012) 6 KANT LJ 349, (2012) 3 KCCR 2152, (2013) 2 ALLCRILR 602
R
1 Crl. P 6471/09
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 4TH DAY OF JUNE, 2012
BEFORE
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL PETITION No.6471 OF 2009
BETWEEN:
1. Nagesh Devadiga @ Nagesh,
29 years,
S/o. Koosa Devadiga,
R/at Door No.63, I Block,
Katipalla Village,
Mangalore Taluk.
2. Tilak Kumar @ Tilak,
Aged 20 years,
S/o. Jaya Poojary,
R/at Site No.734,
III Block, Janatha Colony,
Katipalla Village,
Mangalore Taluk.
3. Sachin D. Ameen @ Sachin,
Aged 20 years,
S/o. Dayananda Ameen,
R/at Venkata Bhavani House,
Near Nithyananda Bhajana Mandira,
I Block, Katipalla Village,
Mangalore Taluk. ... PETITIONER/S
[By Sri. P.P. Hegde, Adv.]
AND:
The State,
Rep. by the Police Inspector,
Surathkal Police Station,
Surathkal, Mangalore Taluk,
2 Crl.P 6471/09
[Rep. by the State Public Prosecutor,
High Court of Karnataka,
Bangalore]. ... RESPONDENT/S
[By Sri. Satish R. Girji, HCGP.]
***
This Criminal Petition is filed under section
482 Cr.P.C praying to quash the order dated:
03.09.2009 passed by the I Addl. Sessions Judge,
D.K., Mangalore in S.C. No.81/2009, rejecting the
memo filed by the accused persons/petitioners herein
and requiring the accused to file fresh bail
application and also demanding fresh bail bonds and
sureties.
This Criminal Petition having been heard and
reserved for Order, this day the Court pronounced
the following:
ORDER
The petitioners are accused in Sessions Case No.81/2009 pending on the file of the I Addl. Sessions Judge, D.K., Mangalore, registered for the offences punishable under Sections 324, 325, 326, 307, 302 r/w. 34 IPC. Initially, after investigation for the aforesaid offences, a charge- sheet came to be filed by the Investigating Agency before the JMFC [II Court], Mangalore, in C.C. No.3115/2009. During the investigation, the 3 Crl.P 6471/09 petitioners had applied for bail before the Sessions Court and the Fast Track Court-I at Mangalore had granted bail vide its Order dated 9th February, 2009 in Crl. Misc. No.62/2009. In pursuance of the bail Order, the petitioner appeared before the Magistrate, executed bail bonds on 22.07.2009 and were released on bail.
2. Vide the committal Order under Section 209 Cr.P.C. dated 25.07.2009, when all the petitioners were present before the Magistrate, the surety was also present and as the offences were exclusively triable by the Sessions Court, the learned Magistrate heard the Assistant Public Prosecutor and also the counsel for the accused, furnished the copy of the charge-sheet to the accused under Section 207 Cr.P.C. and committed the case to the Sessions Court for trial directing the petitioners to execute a personal bond for `50,000-00 with one surety for the likesum. The surety and the accused executed the bond and the petitioners were directed to appear before the Sessions Court on service of the summons. 4 Crl.P 6471/09 The surety was also directed to keep the accused present before the Court on the date of appearance.
In pursuance of the summons issued by the Sessions Court, after committal in Sessions Case No.81/2009, it is on 03.09.2009 that the petitioners appeared before the Sessions Court as the summons was served and the learned counsel for the petitioners filed a memo stating that fresh bail application and bail bonds need not be offered as they had offered them before the learned Magistrate. But, anyhow, the learned Sessions Judge heard the counsel for the petitioners on the said memo and rejected it vide Order dated 03.09.2009. It is this Order, which has been challenged before this Court.
3. I have heard the learned counsel for the petitioners and also the learned High Court Government Pleader.
4. It is relevant to note that after rejection of the memo by the Sessions Court, the petitioners filed an application under Section 439 Cr.P.C., 5 Crl.P 6471/09 which came to be allowed and in pursuance of the said Order, bail bond/s and surety bond/s has/have been executed. In such circumstances, the question raised before this Court is only of academic interest. It is under Section 209 Cr.P.C., that the Magistrate before whom the accused appeared or is brought and the learned Magistrate finds that the offence is exclusively triable by the Sessions Court, he has to comply with the provisions of Sections 207, 208 Cr.P.C. as the case may be and subject to the provisions of the Code relating to bail, remand the accused to the custody during and until conclusion of the trial. So, under the provisions of sub-Section (b) of Section 209 Cr.P.C., the Magistrate has a discretion to direct the accused to appear before the Sessions Court and can take bail bonds or surety bonds either for their appearance before the Sessions Court or even until conclusion of the trial. So, this provision grants a discretion to the learned Magistrate even to take the bail bonds and surety bonds from the accused until conclusion of the trial before the Sessions 6 Crl.P 6471/09 Court. But, generally, this procedure is not followed by the Magistrates and it may be because they leave it to the discretion of the Sessions Court so far as the bonds to be executed and the conditions to be imposed.
5. So far as the facts on hand are concerned, the petitioners were granted bail by the Fast Track Court, so it is in pursuance of this Order of bail that the petitioners appeared before the Magistrate and executed the bonds. A bail once granted by the Court will be in force till conclusion of the trial, unless, it is cancelled for any such reasons. Admittedly, the bail, which was granted by the Fast Track Court was not cancelled and therefore, it will be valid till conclusion of the trial. Therefore, this Court is of the view that when either the Sessions Court or the High Court grants the bail under Section 438 or 439 Cr.P.C., the Order of bail will be in force till conclusion of the trial. Therefore, there was no necessity for the petitioners to submit a bail petition under Section 7 Crl.P 6471/09 439 Cr.P.C. before the learned Sessions Judge, after committal of the trial. To mean, the Sessions Judge was not required to insist the petitioners to apply for bail as the bail which was granted to the petitioners by the Fast Track Court was valid till conclusion of the trial.
6. So far as the bail bonds executed by the petitioners are concerned, as they could be seen, the bonds were only till the appearance of the petitioners before the Sessions Court. Though the learned Magistrate had the discretion to take the bonds from the accused and the sureties even for the period, till conclusion of the trial, he did not desire to do so. There was no impediment for the Magistrate to take bonds from the petitioners both for their appearance before the Sessions Court and also till conclusion of the trial as contemplated under Section 209(b) Cr.P.C. If this was done by the learned Magistrate, there was no necessity for the petitioners to again execute the bonds unless the learned Sessions Judge finds that there was any 8 Crl.P 6471/09 mistake or fraud or otherwise, insufficient sureties have been offered or if the sureties offered become insufficient, then he has the discretion to call upon the petitioners to offer sufficient sureties by passing an appropriate Order as contemplated under Section 443 Cr.P.C. But, anyhow, as the Magistrate had taken the bail bonds only for the appearance by the petitioners before the Sessions Court, there was no error or illegality on the part of the learned Sessions Judge in directing the petitioners to execute the bail bonds and surety bonds.
7. Though the learned counsel for the petitioners has placed reliance on the decision of the Apex Court reported in AIR 1982 Supreme Court 1463 [Free Legal Aid Committee, Jamshedpur Vs. State of Bihar], the Apex Court took into consideration Sections 437, 441(3), 209(b) Cr.P.C. and held:
"In cases triable by the Court of Session, the practice followed by the Magistrates is that when an accused is released on bail by the Magistrate, the bail is granted to him only during the 9 Crl.P 6471/09 pendency of the inquiry before the Magistrate, with the result that when the case is committed to the Court of Session, he is rearrested and brought before the Court of Session where he has to apply once again for fresh bail.
This causes considerable inconvenience
to the accused without any
corresponding advantage so far as the administration of criminal justice is concerned. It would avoid hardship to an accused if the Magistrate, while releasing the accused on bail, requires execution of a bond with or without surety, as the case may be, binding the accused not only to appear as and when required before him but also to appear when called upon in the Court of Session. A Magistrate should normally follow this procedure unless there are any particular reasons for not doing so."
8. Any how, the decision of the Apex Court referred to supra, directs the Magistrates normally to grant the bail binding the accused not only to appear before him, but also to appear before the 10 Crl.P 6471/09 Court of Sessions. There is no such direction to execute the bonds till conclusion of the trial. This Court is of the view that under the provisions of Section 209(b) Cr.P.C., the Magistrate may even take the bonds from the accused and the sureties, not only for appearance of the accused before the Sessions Court, but also till conclusion of the trial. Anyhow, this is a matter in which the learned Magistrate has to exercise his discretion and pass appropriate Orders depending upon the facts of each case.
So, the appreciation of the material on record in the context of the provisions of Section 209 and 443 Cr.P.C., this Court is of the view that the learned Sessions Judge was not right in insisting the petitioners to file an application for bail, but his Order directing the petitioners to execute the bonds is just and proper. Anyhow, as the petitioners have filed an application under Section 439 Cr.P.C. and also executed the bail bonds, I do not desire to disturb the order as setting aside of 11 Crl.P 6471/09 the order would be a technical formality. Therefore, the petition is disposed of with the above observations.
Sd/-
JUDGE.
Ksm*